No. 13-1314
In the Supreme Court of the United States
ARIZONA STATE LEGISLATURE,
Appellant,
v.
ARIZONA INDEPENDENT REDISTRICTING
COMMISSION ET AL.,
Appellees.
On Appeal from the United States District
Court for the District of Arizona
BRIEF OF JACK N. RAKOVE, RICHARD R.
BEEMAN, ALEXANDER KEYSSAR, PETER S.
ONUF, AND ROSEMARIE ZAGARRI AS AMICI
CURIAE IN SUPPORT OF APPELLEES
CHARLES A. ROTHFELD
Counsel of Record
JOSEPH P. MINTA
Mayer Brown LLP
1999 K Street, NW
Washington, DC 20006
(202) 263-3000
crothfeld@mayerbrown.com
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES...................................... iii
STATEMENT OF INTEREST ....................................1
INTRODUCTION AND SUMMARY OF
ARGUMENT................................................................3
ARGUMENT................................................................9
I. American ideas about the value of
attaining proper and just forms of
representation in a legislature were deeply
embedded in the revolutionary controversy
of 1765-1776. ..........................................................9
II. In the decade after 1776, political
developments within the states
increasingly supported the idea that
sovereignty rested not in the government of
the states but among the people
themselves............................................................13
III.In diminishing the sovereign authority of
the state legislatures by proposing the
Times, Places, and Manner Clause, the
framers of the Constitution were seeking to
protect fundamental norms of equal
representation. .....................................................16
IV.The ratification debates of 1787-1788
confirm that concerns relating to the
possible manipulation of congressional
elections by the state legislatures
continued to shape the interpretation of the
Times, Places, and Manner Clause. ....................21
ii
TABLE OF CONTENTS—continued
Page
V. The ideas of popular sovereignty that
coalesced in the United States in the late
1780s are fully consistent with the capacity
of the people of a state, using the modern
initiative process, to delegate a particular
legislative power to an independent
commission. ..........................................................26
VI.The invention of the initiative process is
substantially consistent with the founding
generation’s deeper understanding of the
nature of delegated political authority, in
which the power to legislate transcended
the institutional legislature.................................32
CONCLUSION ..........................................................35
iii
TABLE OF AUTHORITIES
Page(s)
CASES
U.S. Term Limits v. Thornton,
514 U.S. 779 (1995)..............................................30
CONSTITUTIONAL PROVISIONS
U.S. Const. art. I, § 4......................................... passim
U.S. Const. art. I, § 8...........................................20, 34
U.S. Const. art. VI .....................................................28
MISCELLANEOUS
Documentary History of the Ratification of
the Constitution (1976) ................................ passim
Founders’ Constitution (1987)........................... passim
Max Farrand ed., Records of the Federal
Convention of 1787 (1937) .......................16, 18, 20
Bernard Bailyn, Ideological Origins of the
American Revolution (1992) ....................10, 11, 12
Richard Beeman et al. eds., Beyond
Confederation: Origins of the
Constitution and American National
Identity (1987) ......................................................10
Gayles and Seaton’s Debates and Proceedings (1825) ............................................................25
John Locke, Two Treatises of Government,
(Peter Laslett ed. 1988) .......................................10
iv
TABLE OF AUTHORITIES—continued
Page
John Locke, Second Treatise of Government,
(Peter Laslett ed. 1964) .......................................33
James Madison, The Federalist No. 47 ....................34
Eric Nelson, The Royalist Revolution:
Monarchy and the American Founding
(2014) ....................................................................11
James Otis, Considerations on Behalf of the
Colonists (1765)....................................................10
Jack N. Rakove, Original Meanings: Politics
and Ideas in the Making of the
Constitution (1996)....................................... passim
Jack N. Rakove, The Structure of Politics at
the Accession of George Washington, in
Richard Beeman et al. eds., Beyond
Confederation: Origins of the
Constitution and American National
Identity (1987) ........................................................9
Gordon Wood, The Creation of the American
Republic, 1776-1787 (1969) ...............14, 15, 27, 30
BRIEF OF JACK N. RAKOVE, RICHARD R.
BEEMAN, ALEXANDER KEYSSAR, PETER S.
ONUF, AND ROSEMARIE ZAGARRI AS AMICI
CURIAE IN SUPPORT OF APPELLEES
STATEMENT OF INTEREST
Amici curiae are historians whose research interests include the origins and adoption of the Constitution and the evolution of American ideas about
political representation, from the colonial era into
the early decades of the federal Republic. Amici curiae believe that a historical understanding of American ideas of representation and the debate over specific provisions of the Constitution, as conducted by
its framers and ratifiers, will assist the Court in considering the issues presented in this case.1
Jack N. Rakove is the William Robertson Coe
Professor of History and American Studies and Professor of Political Science and (by courtesy) Law at
Stanford University. His books include Original
Meanings: Politics and Ideas in the Making of the
Constitution (1996), which received the Pulitzer
Prize in History; The Annotated U.S. Constitution
and Declaration of Independence (2009); and Revolutionaries (2010), which was a finalist for the George
Washington Prize. He is past president of the Society
for the History of the Early American Republic.
Pursuant to Rule 37.6, amici affirm that no counsel for a party authored this brief in whole or in part and that no person
other than amici and their counsel made a monetary contribution to its preparation or submission. The parties’ blanket letters consenting to the filing of amicus briefs have been filed
with the Clerk.
1
2
Richard R. Beeman, John Welsh Centennial Professor of History Emeritus at the University of Pennsylvania for forty-seven years, has written and edited
thirteen books and several dozen articles on aspects
of America’s political and constitutional history in
the eighteenth and early nineteenth centuries. His
recent book, Plain Honest Men: The Making of the
American Constitution (Random House, 2009), was
winner of the George Washington Book Prize and the
Literary Award of the Philadelphia Athenaeum. His
annotated edition of the Declaration of Independence
and U.S. Constitution, The Penguin Guide to the
United States Constitution, was published in August,
2010. His newest book, Our Lives, Our Fortunes and
Our Sacred Honor: The Forging of American Independence, 1774-1776 (2013), describes the drama
that played out within the Continental Congress between, September, 1774 and July 4, 1776.
Alexander Keyssar, the Matthew W. Stirling, Jr.
Professor of History and Social Policy at Harvard
University and chair of the politics faculty at the
Kennedy School of Government, has specialized in
historical issues that have contemporary policy implications. In 2000, he published The Right to Vote:
The Contested History of Democracy in the United
States, which received the Beveridge Prize of the
American Historical Association for the best book in
U.S. history; and was a finalist for the Pulitzer Prize
in History and the Los Angeles Times Book Award.
His 1986 book, Out of Work: The First Century of Unemployment in Massachusetts, was awarded three
scholarly prizes and named one of the notable books
of the year by the New York Times. He co-authored
The Way of the Ship: America’s Maritime History
Reenvisioned, 1600-2000 (2008), and Inventing America (2003, 2nd ed. 2006), a text integrating the histo-
3
ry of technology and science into the mainstream of
American history. He has also published numerous
op-ed articles publications.
Peter S. Onuf is the Thomas Jefferson Foundation Professor Emeritus in the Corcoran Department
of History at the University of Virginia and Senior
Research Fellow at the Robert H. Smith International Center for Jefferson Studies (Monticello). His recent work on Thomas Jefferson’s political thought,
culminating in Jefferson’s Empire: The Language of
American Nationhood (University Press of Virginia,
2000) and The Mind of Thomas Jefferson (University
Press of Virginia 2007), grows out of earlier studies
on the history of American federalism, foreign policy,
and political economy. He is now collaborating with
Annette Gordon-Reed on “Most Blessed of Patriarchs”: The Worlds of Thomas Jefferson (forthcoming
from Norton). Onuf was elected to the American
Academy of Arts and Sciences in 2014.
Rosemarie Zagarri is University Professor and
Professor of History at George Mason University.
She is the author of many books and articles on the
founding era of American history, including, The Politics of Size: Representation in the United States,
1776-1850 (1987); A Woman’s Dilemma: Mercy Otis
Warren and the American Revolution (1995); and
Revolutionary Backlash: Women and Politics in the
Early American Republic (2007). In 2009-2010 she
was President of the Society for Historians of the
Early American Republic.
INTRODUCTION AND
SUMMARY OF ARGUMENT
A central question raised by this litigation is
whether Article I, Section 4 of the Constitution pre-
4
cludes the people of Arizona from creating a commission operating independently of the state legislature
to establish congressional districts. Such a commission would certainly have been a novelty to the
eighteenth-century adopters of the Constitution.
There was no direct precedent then for imagining the
modern initiative process in which the people of a
state exercise a legislative power that is fully equivalent to the statutory authority of an institutional legislature. The American revolutionaries were, of
course, aware of the ways in which ancient and modern city-states had used procedures of direct democracy. But their constitutional experiments in the
1770s and 1780s were primarily concerned with the
nature of political representation, operating first at
the state and later at the national level of government. They inhabited a political world in which a
commitment to the efficacy and indeed the justice of
representation outweighed solicitude for the institutional privileges of legislatures.
That commitment is consistent with the concerns
that have led the people of Arizona to transfer the
specific power of redistricting from the institutional
legislature to an independent commission. Eighteenth-century Americans understood that specific
powers could be reassigned from one department of
government to another. They also believed that the
people themselves were the originating source of all
the power of government. They were the true sovereign in the American understanding of republican
government. It was fully within their power to relocate this authority from a state legislature that was
perceived to have wielded it for politically improper
purposes.
5
Claims about the adequacy of representation
formed a significant point of controversy in the imperial debate of the late 1760s and early 1770s. The issue was not merely that Americans refused to accept
the legislative sovereignty of a Parliament in which
they were not actually represented. It was also that
colonists shared the widely held view that the vaunted British constitution was also defective because too
many members of the House of Commons sat for
“rotten” and “pocket” boroughs that did not accurately represent the British people as a whole. Drawing
upon ideas that had flourished in England during
the 1640s, Americans held that a representative assembly—particularly the lower house of a bicameral
legislature—should be a mirror or a miniature of the
larger society. The conviction that Americans were
indeed effectively or actually represented in their
provincial legislatures, while Britons were so inadequately represented in Parliament, contributed to
the American movement toward independence by
identifying a profound difference in government between these two parts of the empire. The Americans
were a people who practiced a system of “actual” representation that tied lawmakers and constituents
closely together, while Britain relied on a system of
“virtual representation” in which members of Parliament bore little responsibility to their constituencies.
With the adoption of new constitutions after
1776, Americans perfected this practice within the
individual states. While authority flowed decisively
toward the new legislatures, state declarations of
rights affirmed that lawmakers should regularly return to the “private station” of citizen, the better to
feel the impact of the laws they had enacted. Moreover, whenever the people concluded that government
6
was failing to answer its essential responsibilities,
they retained the “indubitable, unalienable, indefeasible right, to reform, alter, or abolish it.” Virginia
Declaration of Rights Art. 3 (1776), 1 Founders’ Constitution 6 (1987)). In the years after 1776, mounting
dissatisfaction with the performance of the state legislatures marked a leading edge of the movement
that culminated in the Federal Convention of 1787.
In 1787, as in 1776, Americans believed that the
lower house of a legislature should closely resemble
the larger society. That concern influenced the framing of the Times, Places, and Manner Clause (Article
I, Section 4) of the Constitution. This clause was
partly intended to deal with the potential danger of
recalcitrant states refusing to fulfill their constitutional duty to provide for the legal election of members of Congress. But as the remarks of the clause’s
leading advocates, notably James Madison and
Rufus King, indicate, the framers actively worried
that state legislatures would misuse their authority
in inequitable ways, significantly favoring some voters and disfavoring others. A concern with what we
now call the one person, one vote principle of equal
representation and the manipulation of the design of
electoral districts for factious purposes was present
in these debates, and it justified reducing the residual authority of the state legislatures over elections.2
Strikingly, James Madison was not only the first victim of
term limits within the Continental Congress but also, in 1788,
the first object of the practice later called gerrymandering (after
his second Vice-President, Elbridge Gerry) when Patrick Henry,
his great nemesis in Virginia politics, designed a congressional
district that placed Madison’s home county of Orange in what
promised to be an Anti-Federalist-dominated seat.
2
7
The Times, Places, and Manner Clause proved a
significant source of controversy during the ratification debates of 1787-1788. Some of this controversy
reflected familiar motifs in the quarrel between Federalists and Anti-Federalists. The latter repeatedly
predicted that Congress would deprive the mass of
citizens of the suffrage by requiring voters for the
House of Representatives to travel to distant corners
of their states to cast their ballots. Anti-Federalists,
however, said little about the sovereign rights of the
state legislatures per se; they were more troubled by
the array of abuses members of Congress could perpetrate, including arbitrarily lengthening their own
terms of office. Federalists (again including Madison
and King) stressed the problem of state noncompliance with their constitutional duty, but also
identified other ways in which the state legislatures
might threaten the political equality of citizens. In a
few instances, Federalists even wondered whether
senators would find ways to collude with their own
electors in the state legislatures to weaken the popular right of representation in the lower House.
Anti-Federalists proposed amending the Constitution so that the congressional power to alter state
“Regulations” would be exercised only when states
refused to provide for the election of the House of
Representatives; but the dominant Federalists refused to include this proposal in the amendments
sent to the states in 1789. In the constitutional debates of the late 1780s, explicit efforts were made to
restrict the operation of this clause to occasions when
the states overtly refused or failed to comply with
their duty to arrange for the election of members of
Congress. Those efforts failed, and Federalists triumphantly vindicated a national power to oversee
electoral questions that itself drew upon Americans’
8
commitment, dating at least to the 1760s, to maintaining a just system of political representation.
Beyond the controversy over Section 4, the ratification debates involved one other major subject that
relates to the current controversy over the propriety
of independent commissions exercising a legislative
power over redistricting. In legitimating both the replacement of the amendment rules of the Articles of
Confederation through the calling of popularly elected state conventions and the fundamental shift the
Constitution made in the federal system, Federalists
repeatedly evoked a doctrine of popular sovereignty
that made the people themselves the primary source
of constitutional authority. Following arguments best
laid down by James Wilson of Pennsylvania, Federalists argued that the people always retained the right
to “reform, alter, or abolish” existing forms of government. Acting at the federal level, they could reallocate authority between the Union and the States,
as Article I, Section 4 promised to do in the realm of
congressional elections. But the people could also do
so within the boundaries of their own states. As the
sovereign sources of the legal authority of their own
governments, they retained a fundamental right to
determine which institutions would exercise which
powers. They were free to define how the legislative
power of society would be formed. If they wished,
they could restore the legislative veto to the executive. If circumstances warranted, a sovereign people
could also shift specific legislative powers to other
institutions.
Thus, while a specific conception of the people of
a state establishing independent commissions
through the initiative process was not yet available
to Americans, the recognition of their capacity to al-
9
locate legislative power as they wished was consistent with the founding values of the Republic.
ARGUMENT
I.
American ideas about the value of attaining
proper and just forms of representation in a
legislature were deeply embedded in the
revolutionary controversy of 1765-1776.
When the framers of the Constitution took up the
composition of the House of Representatives in 1787,
they had no compelling precedent for the election of
its members. In Britain the composition of the House
of Commons rested on the tradition of two members
for every county and the granting of the right of representation to chartered boroughs and other corporations. In the American colonies, representation was
routinely given to legally defined communities—
townships or counties—as they were organized. But
because the framers intended to create a national
legislature smaller than either the state legislatures
or the House of Commons, they could not rely on these examples. Members of the House of Representatives could be elected either as statewide delegations
or in artificial districts that would have no other legal purpose or political function. One could also imagine a hybrid system in which citizens across a
state could vote for members of each of its individual
districts. There was, in short, a great deal of experimental uncertainty over the election and composition
of the House of Representatives. Jack Rakove, The
Structure of Politics at the Accession of George Washington, in Richard Beeman et al. eds., Beyond Confederation: Origins of the Constitution and American
National Identity 288-289 (1987).
10
Nevertheless, American ideas about representation rested on a rich tradition of historical practice
and political controversy, particularly the quarrel
with Great Britain that erupted with the Stamp Act
(1765). In that dispute, advocates for the British government argued that the colonists were “virtually”
represented in Parliament, even though no Americans sat in the House of Commons. Numerous communities in Britain did not send members to the
Commons, yet were legally bound by its decisions.
Americans dismissed these claims scornfully. As the
Massachusetts radical James Otis pointedly asked,
“To what purpose is it to ring everlasting changes to
the colonists on the cases of Manchester, Birmingham, and Sheffield, which return no members? If
those, now so considerable, places are not represented, they ought to be.” James Otis, Considerations on
Behalf of the Colonists (1765), quoted in Bernard
Bailyn, Ideological Origins of the American Revolution 169 (1992).
In rejecting these claims, the colonists were well
aware of the manifest deficiencies of representation
in Britain. Those deficiencies were not a novelty in
1765: John Locke, for example, had alluded to them
in his Second Treatise of Government (1690). John
Locke, Two Treatises of Government, Sec. 157, at
372-373 (Peter Laslett ed. 1960, 1988). Americans
were drawn to the view that Britain’s vaunted constitution was, in fact, decaying. Too many members
of the Commons sat for “rotten boroughs” with few
voters or “pocket boroughs” in which electors were
easily controlled by a dominant government or aristocratic interest. Even during the Stamp Act disputes, some members of Parliament, notably including William Pitt, freely criticized the inadequacies of
representation in the House of Commons and agreed
11
that Americans could not be taxed by a legislature in
which they held no seats. By contrast, Americans
knew that in their societies new communities regularly received the right of representation, while the
limitations on the suffrage that sharply constricted
the British electorate had only a modest impact in
the colonies. See generally Bailyn, Ideological Origins, at 161-175.
Drawing upon ideas that originated during the
mid-seventeenth-century English civil war and
Commonwealth, the colonists agreed that a proper
legislative assembly should closely resemble the society from which it was drawn. See Eric Nelson, The
Royalist Revolution: Monarchy and the American
Founding (2014) at 71-75. As John Adams observed
in his Thoughts on Government 10 (1776), “The principal Difficulty lies, and the greatest Care should be
employed in constituting this representative assembly. It should be in miniature an exact portrait of the
people at large. It should think, feel, reason, and act
like them.” Such an assembly, Adams added, should
provide “an equal Representation of the People, or, in
other Words, equal Interests among the People,
Should have equal Interests in the Representative
Body.” 1 Founders’ Constitution, at 108. These concerns, drawing on distant English sources, became a
commonplace for the American revolutionaries after
1776, to be repeated during the constitutional debates of 1787-1788. See Rakove, Original Meanings,
at 203-205.
This conscious attachment to the differences in
American and British practices of representation had
two significant consequences for the course of the
Revolution.
12
First, it sharpened colonial convictions about the
extent of the quarrel between Britain and America.
In the mother country, representation had become a
corrupt, influence-driven process, working to the advantage of a Crown and ministry that dominated the
government. By contrast, Americans conceived political representation as a process that should narrow
the distance between voters and legislators, leaving
representatives directly receptive to the concerns
and even the instructions of their electors, and turning the legislative assembly into a miniature of the
larger society. Where British members of Parliament
were urged, in the words of Edmund Burke, to think
of themselves as “a deliberative assembly of one nation, with one interest, that of the whole,” American
norms and practices pointed in a different direction,
toward the idea that representatives were essentially
attorneys for their constituents’ interests and preferences. Edmund Burke, Speech to the Electors of
Bristol (Nov. 3, 1774), in 1 Founders’ Constitution, at
394; Bailyn, Ideological Origins, at 162-165.
Second, this commitment to principles of equal
representation identifies a critical theme in American norms of self-government. In the constitutional
quarrel with Britain, the colonists treated their individual legislative assemblies as the virtual equivalent of Parliament, as possessors of legislative sovereignty within their own jurisdictions. In the years before 1776, Americans principally struggled to have
their provincial assemblies treated as mini-versions
of Parliament. But after 1776, for purposes of their
own governance, the American belief in the superiority of their practice of representation also exposed
the state legislatures to pressure from below, making
the legislatures’ claim to legal sovereignty subject to
new demands and pressures that had not been ex-
13
pressed previously. The more these demands were
expressed, the more difficult it became to treat the
legislatures as the true locus of a state’s sovereignty.
II. In the decade after 1776, political developments within the states increasingly supported the idea that sovereignty rested not
in the government of the states but among
the people themselves.
There is no question that the new state legislatures created in 1776 became the principal repository
of the sovereign authority of republican government.
Although the executive and judicial branches of government gained full departmental independence,
they were the weaker branches, decidedly inferior in
authority to the politically dominant legislature.
Even so, over the course of the next decade a wide
array of developments operated to weaken the primary stature of the state legislatures.
The belief that state legislatures were only trustees of the people’s authority, rather than the sovereign source of law that had effectively supplanted the
king, was evident in the declarations of rights that
often accompanied the constitutions. Statements of
principle found in the Virginia constitution of May
1776 are paradigmatic. While the Virginia constitution itself imposed no term limits on legislators, Article 5 of the Declaration of Rights affirmed the principle of rotation in office: “that the members of [the
Legislative and Executive powers of the State] may
be restrained from oppression, by feeling and participating [in] the burdens of the people, they should, at
fixed periods, be reduced to a private station, return
into that body from which they were originally taken,
and the vacancies be supplied by frequent, certain,
and regular elections, in which all, or any part of the
14
former members, to be again eligible, or ineligible, as
the law shall direct.” 1 Founders’ Constitution, at 6.
More generally, a staple maxim of revolutionary-era
politics held that “when annual elections end, slavery
begins.” Here again the American reliance on the efficacy of representative government ran at least as
strong as the belief in legislative supremacy.
In the decade after 1776, constitutional developments within the states further illustrated the dilution of legislative supremacy. Although the constitutions written in 1776 limited the executive to annual
terms while depriving governors of their veto—a
power royal governors long wielded—the New York
constitution of 1777 and the Massachusetts constitution of 1780 restored the veto to the executive while
enabling governors to be elected at large by the people. Section 15 of the Pennsylvania Constitution of
1776 required pending bills to be “printed for the
consideration of the people” and ideally to be held
over until the next session of the assembly before enactment. Massachusetts also pioneered the concept
of assembling a separate convention to frame a constitution that would then be submitted to the people
for ratification. That development arose only after its
legislature attempted to promulgate a constitution it
had written, sparking opposition from many Massachusetts towns. See generally Rakove, Original
Meanings, at 96-101; Gordon Wood, The Creation of
the American Republic, 1776-1787 339-341 (1969).
Moreover, the concept of the judicial review of legislation began to emerge, slowly but potently, within
the states. Taken together, these developments indicated a growing movement away from the concept of
legislative sovereignty within the individual states.
15
Beyond these constitutional developments, there
is ample evidence of the growth of an early form of
political populism after 1776. The distinguished historian Gordon Wood explores this development at
length in his epochal work, The Creation of the American Republic, 1776-1787. In the mid-1780s the
greatest challenge to the sovereignty of the states
came, Wood argues, not from nationalists eager to
augment the authority of the Continental Congress,
but rather “from below, that is, from the repeated
and intensifying denials by various groups that the
state legislatures adequately spoke for the people
* * * . In the contest between the states and the Congress the ideological momentum of the Revolution
lay with the states; but in the contest between the
people and the state governments it decidedly lay
with the people.” Wood, Creation of the American Republic, at 362.3
By 1787, the idea that sovereignty vested in the
people rather than the state governments became a
potent weapon for the Federalist movement. An appeal to popular sovereignty could enable the Federal
Convention to circumvent the formal amendment requirements of the Articles of Confederation, which
required changes to be approved by a vote of all thirteen legislatures. Equally important, an attack on
the concept of the states’ legislative sovereignty
would facilitate the transfer of authority from the
states to the Union.
More generally, the analysis presented here draws extensively
on Wood, Creation of the American Republic, at 306-389.
3
16
III. In diminishing the sovereign authority of
the state legislatures by proposing the
Times, Places, and Manner Clause, the
framers of the Constitution were seeking to
protect fundamental norms of equal representation.
The Times, Places, and Manner Clause originated in the Committee of Detail that met from July 26August 5, 1787, charged with the task of converting
the general resolutions the Convention had adopted
thus far into the text of a working constitution. The
Committee exercised a great deal of initiative, and
its proposals significantly advanced the work of the
Convention. In early drafts of this clause, the Committee provided that the time, place, and manner of
holding elections for both houses would be “prescribed” by the state legislatures, but that these
“Provisions” could be “altered or superseded” by Congress. The final report the Committee presented to
the Convention on August 6 reduced the supervisory
power of Congress to “altered.” II Max Farrand ed.,
Records of the Federal Convention of 1787 139, 153,
155, 165, 179 (1937) [hereafter RFC].
The clause was actively debated on August 9.
The convention first rejected a motion from James
Madison and Gouverneur Morris to exempt the Senate from the clause. It then unanimously accepted
the first part of the clause, validating the authority
of the state legislatures, and turned to the second
half, dealing with the supervisory authority of Congress. Two South Carolina delegates, Charles Pinckney and John Rutledge, moved to delete this part of
the clause, and five delegates responded in its defense. II RFC, at 239-241.
17
The lengthiest and most comprehensive defense
came (at least according to his own notes) from Madison. His speech deserves careful consideration, because it extended well beyond the possibility that
jealous state legislatures might simply try to cripple
Congress by refusing to arrange for elections. Madison began by noting that the very fact that the House
would be elected by the people rather than the state
legislatures indicated that the framers already
agreed that “the result will be somewhat influenced
by the mode” of election. It was the people who were
meant to be represented, not the legislatures. That
consideration alone justified recognizing “that the
Legislatures of the States ought not to have the
uncontrouled right of regulating the times places &
manner of holding elections.” Moreover, Madison
continued,
These were words of great latitude. It was
impossible to foresee all the abuses that
might be made of the discretionary power.
Whether the electors should vote by ballot or
viva voce, should assemble at this place or
that place; should be divided into districts or
all meet at one place, sh[oul]d all vote for all
the representatives; or all in a district vote
for a number allotted to the district; these &
many other points would depend on the Legislatures, and might materially affect the appointments. Whenever the State Legislatures
had a favorite measure to carry, they would
take care so to mould their regulations as to
favor the candidates they wished to succeed.
Besides, the inequality of the Representation
in the Legislatures of particular States,
would produce a like inequality in their representation in the Natl. Legislature, as it was
18
presumable that the Counties having the
power in the former case would secure it to
themselves in the latter.
II RFC, at 240-241.
The various concerns that Madison identified in
this speech read the Times, Places, and Manner
Clause as broadly as its language could possibly be
interpreted. This analysis covered not only the ways
in which voters would register their individual preferences, but also the entire framework by which a
state would choose how its people would be represented. Madison assumed that existing inequalities
in the composition of the state legislatures would
produce comparable inequalities in the federal
House. He also worried that state legislatures would
seek to “mould” the electoral process, not to enable
the people to secure the best representation for
themselves, but to advance the legislature’s own “favorite measure.”
Madison’s comments reflect the animus against
the state legislatures that shaped his constitutional
thinking in 1787. That attitude was clearly expressed in the documents drafted prior to the Convention. His April 1787 memorandum on the Vices of
the Political System of the United States was a running indictment of state legislatures, which he faulted not only for their failure to implement the decisions of the Continental Congress, but also for the
“multiplicity,” “mutability,” and worst, the “injustice”
of their own legislation. 1 Founders’ Constitution at
166-169. Madison was no defender of the residual
sovereignty of the state legislatures, and his justification of the Times, Places, and Manner Clause was
19
fully consistent with that position.4 By default, the
state legislatures remained the most obvious and
convenient institution for drafting appropriate regulations for congressional elections. But their judgment and preferences did not provide a sufficient basis for determining whether their citizens were indeed being adequately represented. Congressional
supervision was necessary, not only to ensure that
each state would remain represented in the national
legislature, but also to improve (or one could say,
perfect) the basis on which the electorate would be
represented. This was a matter of justice as well as
necessity, and Congress should be empowered to
trench on state legislative authority to attain these
ends.
One could question how well Madison’s views
represented those of other framers. None of the other
four speakers on August 9 went as far as he did in
identifying the potential uses of the clause. But neither did Madison record anyone opposing his views.
Instead, the Convention rejected the motion from
Pinckney and Rutledge. It then accepted a new
change in wording proposed by George Read of Delaware, replacing the phrase “provisions concerning
them may, at any time, be altered by the Legislature
of the United States” with “regulations, in each of
the foregoing cases may at any time, be made or alAs numerous Madison scholars have noted, his favorite proposal for the Constitution was to give the national legislature a
negative on state laws, to be used at least to protect national
laws against the interference of the states, but also, he hoped,
to enable the national government to protect minorities within
the states against unjust legislation. Had that measure been
accepted, the idea that states retained legislative sovereignty
would have grown absurd.
4
20
tered” by Congress. “This was meant to give the
Natl. Legislature a power not only to alter the provisions of the States, but to make regulations in case
the States should fail or refuse altogether.” II RFC,
at 242. The addition of “made” clearly implied that
Congress had its own authority to initiate a wide array of electoral “regulations” independent of any prior action by the states.
This discussion largely determined the substance
of the clause. Two changes were made, however, in
the final days of the Convention. First, the Committee of Style revised the second part of the clause to
read: “but the Congress may at any time by law
make or alter such regulations.” II RFC, at 592. Second, on September 14 the Convention unanimously
added the phrase, “except as to the places of choosing
Senators” at the very end of the clause, “in order to
exempt the seats of Govt in the States from the power of Congress.” Id. at 613.
Along with the Militia Clause of Article I, Section
8, the Times, Places, and Manner Clause was one of
two provisions that explicitly authorized Congress to
override or preempt a legislative power that states
would ordinarily exercise. In this sense, it derogated
from the residual sovereignty of the state legislatures, not as much as Madison’s proposed negative
on state laws would have done, but still in a realm of
governance that dealt with a fundamental political
characteristic of the states. As Madison’s August 9
speech strongly indicates, the rationale for this provision extended beyond the necessity of denying the
state governments the capacity to prevent the national legislature from meeting. Discussions of the
mode of voting, or the different ways in which a
state’s delegation would be constituted, or the value
21
of protecting equality among the citizens all evoked
longstanding American concerns with the substance
and quality of representation, rather than the value
of preserving a traditional legislative power for its
own sake.
IV. The ratification debates of 1787-1788 confirm that concerns relating to the possible
manipulation of congressional elections by
the state legislatures continued to shape
the interpretation of the Times, Places, and
Manner Clause.
Article I, Section 4 proved to be a controversial
feature of the Constitution during the ratification
debates of 1787-1788. Starting with Massachusetts
in January 1788, six states recommended its
amendment. The typical formulation of these
amendments would limit the congressional exercise
of its power to “make or alter” election regulations to
occasions when a state legislature “shall neglect or
refuse to make Laws or Regulations for the purpose”
or when some other event (“invasion or rebellion”)
would leave it “disabled” from acting. 10 Virginia
Amendments to the Constitution, June 27, 1788,
Documentary History of the Ratification of the Constitution, 1555 (1976) [hereafter DHRC]. In two cases, however—Massachusetts and New Hampshire—
Congress would also have been authorized to act
when a state “shall make regulations subversive of
the rights of the people to a free & equal representation to Congress.” Massachusetts Ratification, February 6, 1788, 6 DHRC, at 1469. Here, again, a concern with the purposes of political representation
22
would trump the sovereignty claims of a state legislature.5
Much of the debate over the clause rested on scenarios that are irrelevant to the concerns of this litigation. Anti-Federalists and Federalists speculated
freely over the possibility that either Congress or the
legislatures would enact laws requiring voters to
travel enormous distances to cast their ballots in
polling places situated in some far isolated precinct
of a state. Pennsylvania voters might have to schlep
their way to the shores of Lake Erie, where their
commonwealth then owned only a bare strip of
beachfront, while citizens of Massachusetts might
have to wend their way either to Great-Barrington,
near its western boundary with New York, or to
Machias, which now sits in far northeastern Maine. 7
DHRC, at 1398-99. George Mason warned Virginians
that even if the state should be divided into ten electoral districts, “as Gentlemen say (and in which I accord in all my heart,” Congress might still require
voters to cast their ballots in Norfolk, in the state’s
far southeastern corner. 10 DHRC, at 1291.
Less sensationally, numerous comments made
during the ratification debate focused on the possibility that state legislatures would balk at holding elections. The specter of defiant states provided the most
obvious reason for vesting this power in Congress.
Federalists and Anti-Federalists batted this danger
back and forth in terms that often echoed the rhetorical excesses of the ratification debate. The most extreme comments made by Anti-Federalists suggested
that Congress could use its power to evade other conFor the New York ratification convention’s variation on this
amendment, see 23 DHRC, at 2330-2331.
5
23
stitutional rules, manipulating its control over the
time and manner of elections to convert fixed congressional terms into lifetime positions
Within this debate, however, some speakers in
the state conventions did touch on issues that related
more directly to fundamental principles of equal representation. In Massachusetts, where two days went
to discussing this clause, several speakers argued
that the clause was essential to enable the lower
House, “the democratick branch of the national government, the branch chosen immediately by the people,” to act as “a check on the federal branch.” Without oversight by the House, the federal Senate might
well collaborate with the state legislatures to “at first
diminish, and finally annihilate that controul of the
general government, which the people ought always
to have through their immediate representatives.” 6
DHRC, at 1217. Judge Francis Dana, formerly the
American minister to Tsarina Catherine, told the
convention that he was initially skeptical of the
clause, but now saw its merits. “A State may make
provision, but it may not be agreeable to the spirit of
the Federal Constitution,” Dana observed. “It is not
enough that a State sends its complement of representatives, but all the people ought to have equal influence, and the State regulation is unequal and unjust.” Id. at 1232.
Rufus King soon developed this point at greater
length. The danger of inequality in representation
was evident in several states. In neighboring Connecticut, representation in the state legislature was
given solely to town corporations, independent of
population. Rhode Island was widely believed to be
preparing to adopt the same rule. Worse examples
might be found in the southern states. In South Car-
24
olina there had been enormous growth in the backcountry. But that population’s requests for greater
representation were effectively blocked by the thirty
members who sat for Charleston, out of all proportion to its relative population. Id. at 1279. In the Virginia convention, Madison pointed to South Carolina
to illustrate a broader lesson. “Some States might
regulate the elections on the principles of equality,
and others might regulate them otherwise,” Madison
observed. “This diversity would be obviously unjust.”
This concern with promoting norms of democratic equality thus remained part of the framework
within which the framers and their Federalist supporters conceived the purposes of Article I, Section 4.
One element of this concern was clearly addressed to
the eighteenth-century equivalent of our modern notion of one person, one vote, and the conviction that
electoral districts should be of equal size. But the political universe of the American revolutionaries was
also filled with images of the way in which processes
of deliberation and representation were subject to
corruption. That was one of the great legacies they
inherited from their pre-1776 belief that both the
British House of Commons and the British electorate
were the victims of multiple forms of corruption that
had sapped the independence of Parliament and prevented it from performing its constitutional duties.
It is noteworthy that Madison and King acted as
both framers and ratifiers of the Constitution. Both
spoke during the August 9, 1787 debate on the
clause, and both made similar remarks in the ratification conventions. There is, of course, no mechanism available to measure exactly how representative their opinions were (though Madison admittedly
enjoys some deserved prestige in the adoption of the
25
Constitution). Nevertheless, the belief that the purposes of the clause transcended the unlikely scenario
of recalcitrant states simply blocking the election of
congressional delegations was manifestly one element—and hardly a trivial one—in the support that
Federalists gave to the clause as written. The commitment of the dominant Federalists to protecting
the substantive purposes of the representation of the
people, rather than a desire to minimize the potential insult to the residual sovereignty of the state legislatures, remained the driving force in the ratification debates.
Had Federalists not held this position, or had he
not felt so strongly about this issue, Madison could
easily have included a conciliatory response to AntiFederalist criticisms in the amendments he proposed
to the House of Representatives on June 8, 1789.
Madison did include two other measures relating to
the election of the House of Representatives, and
Congress ultimately included both in the twelve
amendments it sent to the states in September 1789.
However, on August 21, as the House was near the
close of its deliberations on amendments, Aedaenus
Burke of South Carolina introduced a revised version
of the Times, Places, and Manner Clause based on
the states’ recommended amendments. Burke’s proposal would restrict congressional power to those occasions when “any State shall refuse or neglect, or be
unable, by invasion or rebellion, to make such election.” The ensuing debate recapitulated the arguments made during the ratification debates. By a
vote of 28-23, the House rejected Burke’s amendment. 1 Gayles and Seaton’s Debates and Proceedings
797-802 (1825).
26
Over the two years separating the report of the
Committee of Detail of August 6, 1787, from the deliberations of the First Congress over constitutional
amendments, the Times, Places, and Manner Clause
remained a subject of active contestation. Two alternatives were repeatedly available to the framers,
ratifiers, and the amenders of the Constitution: to
restrict its operation only to occasions when the state
legislatures manifestly defaulted on their constitutional duty, or to enable the new Congress to judge
just how well different election schemes framed by
the states were fulfilling deeper objectives of political
representation. Although some state conventions had
favored the former option, it failed to gain political
acceptance. The dominant Federalist viewpoint instead prevailed. The substantive purposes of representation remained far more important than the legislative privileges of the states.
V. The ideas of popular sovereignty that coalesced in the United States in the late 1780s
are fully consistent with the capacity of the
people of a state, using the modern initiative process, to delegate a particular legislative power to an independent commission.
Beyond the specific discussions of the Times,
Places, and Manner Clause, the ratification debates
of 1787-1788 are relevant to the questions posed in
this litigation in one further, critically important respect. The residual sovereignty of the state legislatures became vulnerable not only to limitations from
above—that is, from assertions of federal supremacy
over state legislation. It also became susceptible to
modification from below—that is, from the idea that
the people themselves, as the original possessors of
27
the sovereign authority of a republican polity, always
remained free to reallocate the powers of government
as they wished. Within both the individual states
and the federal republic, the people became the ultimate sources of the delegated authority their governments exercised in their name. The highly creative development of American constitutional thinking in the long decade after 1776 had the effect of
converting a somewhat abstract belief in the natural
right of a people to “alter and abolish government”
into a potent doctrine that now proved fundamental
to the very form and substance of American constitutionalism. Once this doctrine was propounded and
accepted, it could be applied to multiple purposes, including eventually the invention of the initiative process as a constructive response to the conviction that
state legislatures no longer provided the best representation of a people’s collective interests.
There were multiple sources for the transformation of the concept of popular sovereignty from
abstract principle to constitutional doctrine. One
came from the development of the distinctive American definition of a constitution as supreme fundamental law, contained in a document written by a
specially appointed convention and then ratified
through some direct expression of the popular will.
Another evolved from the process that Gordon Wood
has called “the disintegration of representation,” a
term that denotes the erosion of popular confidence
in the capacity of effective governance by the revolutionary state legislatures. Wood, Creation of the
American Republic, at 363-383.
The constitutional debates of the late 1780s advanced and crystallized this development in several
substantial ways.
28
First, the framers of the Constitution and their
Federalist supporters agreed that an appeal to the
popular sovereignty of the people, as expressed
through the ratification conventions in the separate
states, would overcome any doubts about the abandonment of the amendment rules of the Articles of
Confederation. This calculation gained decisive support throughout the states. Twelve of the thirteen
legislatures enacted laws for the election of convention delegates, while Rhode Island, the one state not
present at the Federal Convention, went the other
states one better by submitting the proposed Constitution to a popular referendum. Rakove, Original
Meanings, at 102-108.
Second, popularly elected ratification conventions provided a legal solution to the vexing problem
of quod leges posteriors priores contrarias abrogant.6
If the state constitutions (prior to Massachusetts)
and the Articles of Confederation had received only
legislative approval, as had been the case, then later
meetings of the state legislatures remained free to
ignore or violate their antecedents’ constitutional
commitments, as one legislature cannot bind a later
one. By resting the authority of the proposed Constitution on the ratification conventions, which assembled for one purpose alone, rather than the legislatures, the framers and the Federalists established a
sound theoretical foundation for the legal supremacy
of the Constitution expressed generally in Article VI,
and more pointedly in Article I, Section 4.
Third, and most important, this new conception
of popular sovereignty offered a paradigmatic soluOr, later laws [statutes] contradicting earlier ones, abrogate
them.
6
29
tion to the problem of federalism. Anti-Federalists
repeatedly described the proposed Constitution as a
vehicle for the consolidation of the federal union,
with its diverse member states, into one concentrated government. There was some dispute as to how
this consolidation would occur. Some AntiFederalists argued that consolidation would occur
simply because the national government, with its
own three departments, would act directly on the
American people, rather than having to work
through the states. Others imagined an ongoing
competition for power between the Union and the
states that would end only when the national government prevailed and the states were left as empty
jurisdictions, doing little more than holding elections
under the condescending terms of the Times, Places,
and Manner Clause. No polity could survive, AntiFederalists argued, on the detested principle of imperium in imperio (a state within a state, or two
claimants striving for sovereignty against each other). In either case, Anti-Federalists assumed that
sovereignty would have to reside in one body or the
other, but not in both. Rakove, Original Meanings, at
181-184.
The decisive refutation of this argument came
from James Wilson, future member of the first Supreme Court, active member of the Pennsylvania
delegation to the Federal Convention, and conspicuous leader of the dominant Federalist majority at his
state’s ratification convention. In a major speech to
the state convention that soon became the basis of
Federalist orthodoxy, Wilson challenged the existing
conception of sovereignty. It was a mistake, he argued, to imagine that sovereignty, properly defined,
belonged to government. In the American system,
sovereignty belonged to the people themselves. They
30
could decide, and re-decide, how much power to allocate to the national government, how much to the
states. “[I]n this country, the supreme, absolute, and
uncontrollable power resides in the people at large;
that they have vested certain proportions of this
power in the state governments; but that the fee
simple continues, resides, and remains with the body
of the people.” 2 DHRC, at 473) Wilson supported
this claim by invoking the Declaration of Independence, with its Lockean statement of “the RIGHT of
the people, to alter or to abolish” any form of government. See generally Wood, Creation of the American Republic, at 524-543.
Wilson’s reformulation of the problem of sovereignty is noteworthy in several respects. First, to
some extent Wilson was preserving the traditional
definition of sovereignty as an “absolute, and uncontrollable” form of power—a definition traceable to
Jean Bodin and Thomas Hobbes, but also present in
the writings of Sir William Blackstone. Sovereignty
in this sense remains unitary in nature; it can only
be found in one location. But second, Wilson shifts
that location from government to the people themselves, and allows it to be expressed only through the
deposit of individual sovereign powers in different
levels or branches of government. The people’s sovereignty appears when they consent to fundamental
constitutional arrangements, including the division
of power between national and state governments. In
this sense Wilson was illustrating this Court’s wellknown description of the capacity of American federalism to “split the atom of sovereignty.” U.S. Term
Limits v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). Third, Wilson imagines the
constitutional exercise of popular sovereignty as an
ongoing although episodic endeavor. “It is true the
31
exercise of this power will not probably be so frequent, nor resorted to on so many occasions in one
case as in the other.” 2 DHRC, at 473). The power
may well lie dormant for long periods, but it never
disappears.
Writing within the context of the debates of
1787-1788, Wilson was primarily concerned with refuting the charge that the Constitution would erode
or destroy the states’ sovereignty. But this doctrine,
which other Federalists rapidly embraced, was as
applicable to the states’ internal governance as it
was to the problem of federalism. Just as the American people were free to reallocate power between the
national government and the states, so the people of
Pennsylvania remained free to reconsider the design
of their own constitution. That is exactly what they
did in 1790, when the radically democratic constitution the state had adopted in 1776 was replaced by a
new text that brought it much closer to the prevailing forms of American constitutionalism.7
The development of the initiative process was
not, of course, a method of governance that Wilson
could have actively considered in 1787. Nor was he
then immediately concerned with discussing the internal governance of a state. But the idea that the
sovereign people of a state might transfer the politiOne significant achievement of the 1790 constitution was thus
to convert the Pennsylvania assembly into a bicameral legislature. But had the people of Pennsylvania decided to create an
independent commission to conduct the work of redistricting,
that would have been a legitimate exercise of their sovereign
power, because they would have entrusted this legislative power to a special institution, just as they had once created a Council of Censors to monitor deviations from their original (and
deeply controversial) constitution of 1776.
7
32
cally charged task of ensuring their representation
from a legislature whose workings they had come to
distrust to an independent commission was fully
consistent with the authoritative theory of popular
sovereignty he laid down. Given the political context
of 1787-1788, when the victorious Federalists were
heaping so much obloquy on state legislatures, the
idea of creating an independent commission to perform such a task would not have been inconsistent
with this theory of the people’s ultimate capacity to
act constitutionally.
VI. The invention of the initiative process is
substantially consistent with the founding
generation’s deeper understanding of the
nature of delegated political authority, in
which the power to legislate transcended
the institutional legislature.
Wilson’s definitive restatement of the doctrine of
popular sovereignty carries special importance for its
resolution of the peculiar problem posed by the innate character of American federalism. Yet this conception of the people’s ultimate sovereignty also echoed themes that were already circulating in the Anglo-American constitutional tradition well before the
momentous developments of 1787-1788. John Locke
offered a definitive statement of the people’s right to
alter government as they wished in § 149 of the Second Treatise of Government. There was no question,
Locke observed, that the legislative power was the
highest (or “supreme”) power of government,
yet the Legislative being only a Fiduciary
Power to act for certain ends, there remains
still in the People a Supream Power to remove or alter the Legislative, when they find
the Legislative act contrary to the trust re-
33
posed in them. For all Power given with trust
for the attaining an end, being limited by
that end, whenever that end is manifestly
neglected, or opposed, the trust must necessarily be forfeited, and the Power devolve into the hands of those that gave it, who may
place it anew where they shall think best for
their safety and security.
John Locke, Second Treatise of Government 367
(Laslett ed. 1964)
It is essential to note that Locke here speaks, not
of the legislature as an institution, but of legislative
power per se. That is the trust being delegated. It is
the authority to make law, rather than the institutional contrivance of a legislature, that matters.
When seventeenth- and eighteenth-century commentators spoke about legislative power, they were not
merely reducing the authority to make law to a single institution. Their entire theory of government,
which Locke so ably expressed, rested on the conviction that legislatures were a substitute for the people
themselves. Of course, legislatures might well improve upon the deliberations the people at large
might conduct. (This was manifestly James Madison’s position in 1787-1788.) But the legislative powers that the people delegated always remained subject to popular review. And where the American constitutions offered the people mechanisms for revising
this trust, and where the people’s mature judgment
led them to conclude that an institution was not operating optimally, the persistence of the states as autonomous jurisdictions permitted the people to reconstitute the trust of legislative power in new ways.
The great shift from Locke’s era of resistance
against arbitrary government to Madison’s and Wil-
34
son’s era of creative constitution making pivoted, in
critical respects, on the ways in which a people could
convey that trust. The Glorious Revolution of 16881689 confirmed the disputed principle of legislative
supremacy while prohibiting the Crown from making
law of its own willful authority. But it did not establish a new basis for erecting constitutional government. The American Revolution, however, did just
that, first at the state level in the mid-1770s, and
then nationally in the late 1780s. An event that
Locke could only describe by reference to a distant
state of nature became, in American hands, a workable set of procedures for distinguishing a constitution
from ordinary law and conceiving how such a document could be amended over time.
In this process, Americans also learned to think
more critically about the nature of the powers they
were delegating and distributing among institutions.
They entered the process of constitution making as
faithful readers of Montesquieu’s recent separation
of the three departments of domestic governance:
legislative, executive, and judicial. Their state constitutions and declarations of rights affirmed the principle that these three forms of powers should be kept
separate and distinct. See Massachusetts Declaration of Rights Art. XXX (1780), 1 Founders’ Constitution, at 13-14. But as Madison explained with some
care in The Federalist No. 47, there were numerous
ways in which the actual distribution of specific powers in the American constitutions did not conform to
Montesquieu’s broad dictum. Powers could be distributed among the branches of government in less
tidy ways. They could also be reclassified in their
very nature. As Article I, Section 8 of the federal
Constitution readily confirms, powers long deemed
35
part of the royal prerogative in Britain became legislative in the United States.
All of this is consistent with the profound residual authority of the people to “alter the Legislative”
when they conclude, through the well-defined procedures of the initiative, that a legislature’s manipulation of its redistricting power is no longer adequately
expressing their need for a just representation. For
this reason, the decision by the people of Arizona to
establish an independent redistricting commission is
fully consistent with the political values underlying
the Constitution, even if the legislative initiative had
yet to be conceived in the 1780s.
CONCLUSION
The district court’s decision should be affirmed.
Respectfully submitted.
CHARLES A. ROTHFELD
Counsel of Record
JOSEPH P. MINTA
Mayer Brown LLP
1999 K Street, NW
Washington, DC 20006
(202) 263-3000
crothfeld@mayerbrown.com
Counsel for Amicus Curiae
JANUARY 2015